Bombay HC says IT Rules on 'fake' news may be excessive
The Bombay high court on Friday said the amended IT Rules that include the provision for a fact check unit (FCU) that will flag “fake, false or misleading” content on social about the government might be “excessive”, quipping that one cannot “bring a hammer to kill an ant”.
The court is hearing petitions filed by the stand-up comedian Kunal Kamra, and media bodies - the Editor’s Guild and the Association of Indian Magazines against Rule 3(i)(II)(C) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2023 – commonly known as the new IT Rules – that gives powers to the FCU.
The rules require social media intermediaries to censor, modify or even take down content flagged by the FCU. That the unit has been given a wide berth to determine what “fake news” is has concerned media associations, which say the powers may be misused to restrict even legitimate criticism of the government.
The bench of Justices Gautam Patel and Neela Gokhale, which is hearing the petitions, also orally remarked that the government is not a “repository of truth that cannot be questioned”.
Justice Patel said:
“In a democratic process, the essence of which is discourse, government itself is a participant. It is not repository of truth that cannot be questioned. Forget the fundamental right to lie, it is the citizens right to doubt, question the government and it has to answer. This power here [of FCU], it’s very difficult”.
The judge also wondered “who will fact-check the FCU”. He added that if the Press Information Bureau posts some news which is fake, the rules do not provide for any action.
The court also remarked that it could not understand the concern that necessitated the amendment. “What is the anxiety behind it? What was the need? I still don’t know,” the bench said.
Advocate Gautam Bhatia, who is representing the Association of Indian Magazines, asked, “Does the constitution authorise the government to classify speech based on values? Does the constitution authorise the government to arbiter what is true and false? Are the impugned amendments intra vires the parent statute? The answer to all is no.”
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